Postnuptial Contracts

If you do not execute an antenuptial contract prior to marriage, you will deemed to be married In Community of Property in terms of South African law. The consequence would be the same if you signed a contract but it was not registered within three (3) months from the date of signature.

It is possible to change your matrimonial property regime from “in” to “out” of community of property by registration of a Postnuptial Contract in terms of Section 21(1) of the Matrimonial Property Act. Similarly, if your contract was not registered timeously you may apply to court for permission for late registration of your contract in terms of Section 88 of the Deeds Registries Act.

The procedure involves a joint application to the High Court by both spouses, requesting the Court to grant leave to sign and/or register the contract.

In order for the parties to change their matrimonial property system, the Act provides the following requirements:

Sound reasons for the proposed change.

Sufficient notice of the proposed change must be given to all creditors and the Registrar of Deeds

The court must be satisfied that no other person will be prejudiced by the change.

If neither spouse is insolvent and neither spouse has any judgments or pending legal action against them, then the application will succeed. If this is not the case, then there is chance that creditors may object to the application.

The cost of registering a Postnuptial Contract is estimated as follows:

Attorney’s fees in respect of and incidental to taking instructions and preparing Application (including Notice of Motion, Founding Affidavit and Supporting Affidavit), and attending to issue, service and filing thereof; Drafting Notice(s) to creditors and attending to service thereof; Formal and non-formal attendances and all other attendances and correspondence.